Florida Senate - 2012               CS for CS for CS for SB 1358
       
       
       
       By the Committees on Budget; Budget Subcommittee on General
       Government Appropriations; and Governmental Oversight and
       Accountability; and Senator Hays
       
       
       576-04507-12                                          20121358c3
    1                        A bill to be entitled                      
    2         An act relating to drug-free workplaces; amending s.
    3         112.0455, F.S.; revising the definition of the term
    4         “job applicant,” defining the term “random testing,”
    5         and removing the definition of the term “safety
    6         sensitive position” for purposes of the Drug-Free
    7         Workplace Act; requiring drug testing to be conducted
    8         within each state agency’s appropriation; authorizing
    9         a state agency to conduct random drug testing every 3
   10         months; providing testing selection requirements;
   11         removing provisions prohibiting a state agency from
   12         discharging or disciplining an employee under certain
   13         circumstances based on the employee’s first positive
   14         confirmed drug test; removing provisions limiting the
   15         circumstances under which an agency may discharge an
   16         employee in a special risk or safety-sensitive
   17         position; providing that an agency may discharge or
   18         discipline an employee following a first-time positive
   19         confirmed drug test result; authorizing an agency to
   20         refer an employee to an employee assistance program or
   21         an alcohol and drug rehabilitation program if the
   22         employee is not discharged; requiring participation in
   23         an employee assistance program or an alcohol and drug
   24         rehabilitation program at the employee’s own expense
   25         or at the expense of a health insurance plan;
   26         requiring the employer to determine if the employee is
   27         able to safely and effectively perform the job duties
   28         assigned to the employee while the employee is
   29         participating in the employee assistance program or
   30         alcohol and drug rehabilitation program; deeming that
   31         certain specified job activities cannot be performed
   32         safely and effectively while the employee is
   33         participating in the employee assistance program or
   34         alcohol and drug rehabilitation program; requiring the
   35         employer to transfer the employee to a job assignment
   36         that he or she can perform safely and effectively
   37         while the employee participates in the employee
   38         assistance program or alcohol and drug rehabilitation
   39         program; requiring the employer to place the employee
   40         on leave status while the employee is participating in
   41         an employee assistance program or an alcohol and drug
   42         rehabilitation program if such a position is
   43         unavailable; authorizing the employee to use
   44         accumulated leave credits before being placed on leave
   45         without pay; amending s. 440.102, F.S.; revising the
   46         definition of the term “job applicant” as it pertains
   47         to a public employer; removing the definition of the
   48         term “safety-sensitive position” and replacing it with
   49         the definition for the term “mandatory-testing
   50         position”; providing that an employer remains
   51         qualified for an insurer rate plan that discounts
   52         rates for workers’ compensation and employer’s
   53         liability insurance policies if the employer maintains
   54         a drug-free workplace program that is broader in scope
   55         than that provided for by the standards and procedures
   56         established in the act; authorizing a public employer,
   57         using an unbiased selection procedure, to conduct
   58         random drug tests of employees occupying mandatory
   59         testing or special-risk positions if the testing is
   60         performed in accordance with drug-testing rules
   61         adopted by the Agency for Health Care Administration;
   62         requiring that a public sector employer assign a
   63         public sector employee to a position other than a
   64         mandatory-testing position if the employee enters an
   65         employee assistance program or drug and alcohol
   66         rehabilitation program; amending s. 944.474, F.S.;
   67         revising provisions governing employees of the state
   68         correctional system, to conform to changes made by the
   69         act; providing an effective date.
   70  
   71  Be It Enacted by the Legislature of the State of Florida:
   72  
   73         Section 1. Subsections (5), (7), and (8) and paragraphs
   74  (h), (i), (j), and (k) of subsection (10) of section 112.0455,
   75  Florida Statutes, are amended to read:
   76         112.0455 Drug-Free Workplace Act.—
   77         (5) DEFINITIONS.—Except where the context otherwise
   78  requires, as used in this act:
   79         (a) “Drug” means alcohol, including distilled spirits,
   80  wine, malt beverages, and intoxicating liquors; amphetamines;
   81  cannabinoids; cocaine; phencyclidine (PCP); hallucinogens;
   82  methaqualone; opiates; barbiturates; benzodiazepines; synthetic
   83  narcotics; designer drugs; or a metabolite of any of the
   84  substances listed herein.
   85         (b) “Drug test” or “test” means any chemical, biological,
   86  or physical instrumental analysis administered for the purpose
   87  of determining the presence or absence of a drug or its
   88  metabolites.
   89         (c) “Initial drug test” means a sensitive, rapid, and
   90  reliable procedure to identify negative and presumptive positive
   91  specimens. All initial tests must shall use an immunoassay
   92  procedure or an equivalent, or must shall use a more accurate
   93  scientifically accepted method approved by the Agency for Health
   94  Care Administration as such more accurate technology becomes
   95  available in a cost-effective form.
   96         (d) “Confirmation test,” “confirmed test,” or “confirmed
   97  drug test” means a second analytical procedure used to identify
   98  the presence of a specific drug or metabolite in a specimen. The
   99  confirmation test must be different in scientific principle from
  100  that of the initial test procedure. This confirmation method
  101  must be capable of providing requisite specificity, sensitivity,
  102  and quantitative accuracy.
  103         (e) “Chain of custody” refers to the methodology of
  104  tracking specified materials or substances for the purpose of
  105  maintaining control and accountability from initial collection
  106  to final disposition for all such materials or substances and
  107  providing for accountability at each stage in handling, testing,
  108  storing specimens, and reporting of test results.
  109         (f) “Job applicant” means a person who has applied for a
  110  special risk or safety-sensitive position with an employer and
  111  has been offered employment conditioned upon successfully
  112  passing a drug test.
  113         (g) “Employee” means a any person who works for salary,
  114  wages, or other remuneration for an employer.
  115         (h) “Employer” means an any agency within state government
  116  that employs individuals for salary, wages, or other
  117  remuneration.
  118         (i) “Prescription or nonprescription medication” means a
  119  drug or medication obtained pursuant to a prescription as
  120  defined by s. 893.02 or a medication that is authorized pursuant
  121  to federal or state law for general distribution and use without
  122  a prescription in the treatment of human diseases, ailments, or
  123  injuries.
  124         (j) “Random testing” means a drug test conducted on
  125  employees who are selected through the use of a computer
  126  generated random sample of an employer’s employees.
  127         (k)(j) “Reasonable suspicion drug testing” means drug
  128  testing based on a belief that an employee is using or has used
  129  drugs in violation of the employer’s policy drawn from specific
  130  objective and articulable facts and reasonable inferences drawn
  131  from those facts in light of experience. Reasonable suspicion
  132  drug testing may shall not be required except upon the
  133  recommendation of a supervisor who is at least one level of
  134  supervision higher than the immediate supervisor of the employee
  135  in question. Among other things, such facts and inferences may
  136  be based upon:
  137         1. Observable phenomena while at work, such as direct
  138  observation of drug use or of the physical symptoms or
  139  manifestations of being under the influence of a drug.
  140         2. Abnormal conduct or erratic behavior while at work or a
  141  significant deterioration in work performance.
  142         3. A report of drug use, provided by a reliable and
  143  credible source, which has been independently corroborated.
  144         4. Evidence that an individual has tampered with a drug
  145  test during employment with the current employer.
  146         5. Information that an employee has caused, or contributed
  147  to, an accident while at work.
  148         6. Evidence that an employee has used, possessed, sold,
  149  solicited, or transferred drugs while working or while on the
  150  employer’s premises or while operating the employer’s vehicle,
  151  machinery, or equipment.
  152         (l)(k) “Specimen” means a tissue, hair, or product of the
  153  human body capable of revealing the presence of drugs or their
  154  metabolites.
  155         (m)(l) “Employee assistance program” means an established
  156  program for employee assessment, counseling, and possible
  157  referral to an alcohol and drug rehabilitation program.
  158         (m) “Safety-sensitive position” means any position,
  159  including a supervisory or management position, in which a drug
  160  impairment would constitute an immediate and direct threat to
  161  public health or safety.
  162         (n) “Special risk” means employees who are required as a
  163  condition of employment to be certified under chapter 633 or
  164  chapter 943.
  165         (7) TYPES OF TESTING.—Drug testing must be conducted within
  166  each agency’s appropriation. An employer may conduct is
  167  authorized, but is not required, to conduct, the following types
  168  of drug tests:
  169         (a) Job applicant testing.—An employer may require job
  170  applicants to submit to a drug test and may use a refusal to
  171  submit to a drug test or a positive confirmed drug test as a
  172  basis for refusal to hire the job applicant.
  173         (b) Reasonable suspicion.—An employer may require an
  174  employee to submit to reasonable suspicion drug testing.
  175         (c) Random testing.—An employer may conduct random testing
  176  once every 3 months. The random sample of employees chosen for
  177  testing must be computer-generated by an independent third
  178  party. A random sample may not constitute more than 10 percent
  179  of the total employee population.
  180         (d)(c)Routine fitness for duty.—An employer may require an
  181  employee to submit to a drug test if the test is conducted as
  182  part of a routinely scheduled employee fitness-for-duty medical
  183  examination that is part of the employer’s established policy or
  184  that is scheduled routinely for all members of an employment
  185  classification or group.
  186         (e)(d)Followup testing.—If the employee in the course of
  187  employment enters an employee assistance program for drug
  188  related problems, or an alcohol and drug rehabilitation program,
  189  the employer may require the said employee to submit to a drug
  190  test as a followup to such program, and on a quarterly,
  191  semiannual, or annual basis for up to 2 years thereafter.
  192         (8) PROCEDURES AND EMPLOYEE PROTECTION.—All specimen
  193  collection and testing for drugs under this section shall be
  194  performed in accordance with the following procedures:
  195         (a) A sample shall be collected with due regard to the
  196  privacy of the individual providing the sample, and in a manner
  197  reasonably calculated to prevent substitution or contamination
  198  of the sample.
  199         (b) Specimen collection shall be documented, and the
  200  documentation procedures shall include:
  201         1. Labeling of specimen containers so as to reasonably
  202  preclude the likelihood of erroneous identification of test
  203  results.
  204         2. A form for the employee or job applicant to provide any
  205  information he or she considers relevant to the test, including
  206  identification of currently or recently used prescription or
  207  nonprescription medication, or other relevant medical
  208  information. Such form shall provide notice of the most common
  209  medications by brand name or common name, as applicable, as well
  210  as by chemical name, which may alter or affect a drug test. The
  211  providing of information does shall not preclude the
  212  administration of the drug test, but shall be taken into account
  213  in interpreting any positive confirmed results.
  214         (c) Specimen collection, storage, and transportation to the
  215  testing site shall be performed in a manner that which will
  216  reasonably preclude specimen contamination or adulteration.
  217         (d) Each initial and confirmation test conducted under this
  218  section, not including the taking or collecting of a specimen to
  219  be tested, shall be conducted by a licensed laboratory as
  220  described in subsection (12).
  221         (e) A specimen for a drug test may be taken or collected by
  222  any of the following persons:
  223         1. A physician, a physician’s assistant, a registered
  224  professional nurse, a licensed practical nurse, a nurse
  225  practitioner, or a certified paramedic who is present at the
  226  scene of an accident for the purpose of rendering emergency
  227  medical service or treatment.
  228         2. A qualified person employed by a licensed laboratory.
  229         (f) A person who collects or takes a specimen for a drug
  230  test conducted pursuant to this section shall collect an amount
  231  sufficient for two drug tests as determined by the Agency for
  232  Health Care Administration.
  233         (g) Any drug test conducted or requested by an employer may
  234  occur before, during, or immediately after the regular work
  235  period of the employee, and shall be deemed to be performed
  236  during work time for the purposes of determining compensation
  237  and benefits for the employee.
  238         (h) Every specimen that produces a positive confirmed
  239  result shall be preserved by the licensed laboratory that
  240  conducts the confirmation test for a period of at least 210 days
  241  from the time the results of the positive confirmation test are
  242  mailed or otherwise delivered to the employer. However, if an
  243  employee or job applicant undertakes an administrative or legal
  244  challenge to the test result, the employee or job applicant
  245  shall notify the laboratory and the sample shall be retained by
  246  the laboratory until the case or administrative appeal is
  247  settled. During the 180-day period after written notification of
  248  a positive test result, the employee or job applicant who has
  249  provided the specimen shall be permitted by the employer to have
  250  a portion of the specimen retested, at the employee or job
  251  applicant’s expense, at another laboratory, licensed and
  252  approved by the Agency for Health Care Administration, chosen by
  253  the employee or job applicant. The second laboratory must test
  254  at equal or greater sensitivity for the drug in question as the
  255  first laboratory. The first laboratory that which performed the
  256  test for the employer is shall be responsible for the transfer
  257  of the portion of the specimen to be retested, and for the
  258  integrity of the chain of custody during such transfer.
  259         (i) Within 5 working days after receipt of a positive
  260  confirmed test result from the testing laboratory, an employer
  261  shall inform an employee or job applicant in writing of such
  262  positive test result, the consequences of such results, and the
  263  options available to the employee or job applicant.
  264         (j) The employer shall provide to the employee or job
  265  applicant, upon request, a copy of the test results.
  266         (k) Within 5 working days after receiving notice of a
  267  positive confirmed test result, the employee or job applicant
  268  may submit information to an employer explaining or contesting
  269  the test results, and why the results do not constitute a
  270  violation of the employer’s policy.
  271         (l) If an employee or job applicant’s explanation or
  272  challenge of the positive test results is unsatisfactory to the
  273  employer, a written explanation as to why the employee or job
  274  applicant’s explanation is unsatisfactory, along with the report
  275  of positive results, shall be provided by the employer to the
  276  employee or job applicant. All such documentation shall be kept
  277  confidential and exempt from the provisions of s. 119.07(1) by
  278  the employer pursuant to subsection (11) and shall be retained
  279  by the employer for at least 1 year.
  280         (m) An No employer may not discharge, discipline, refuse to
  281  hire, discriminate against, or request or require rehabilitation
  282  of an employee or job applicant on the sole basis of a positive
  283  test result that has not been verified by a confirmation test.
  284         (n) In addition to the limitation under paragraph (m):
  285         1. Except as provided in subparagraph 3., no employer may
  286  discharge, discipline, or discriminate against an employee on
  287  the sole basis of the employee’s first positive confirmed drug
  288  test, unless the employer has first given the employee an
  289  opportunity to participate in, at the employee’s own expense or
  290  pursuant to coverage under a health insurance plan, an employee
  291  assistance program or an alcohol and drug rehabilitation
  292  program, and:
  293         a. The employee has either refused to participate in the
  294  employee assistance program or the alcohol and drug
  295  rehabilitation program or has failed to successfully complete
  296  such program, as evidenced by withdrawal from the program before
  297  its completion or a report from the program indicating
  298  unsatisfactory compliance, or by a positive test result on a
  299  confirmation test after completion of the program; or
  300         b. The employee has failed or refused to sign a written
  301  consent form allowing the employer to obtain information
  302  regarding the progress and successful completion of an employee
  303  assistance program or an alcohol and drug rehabilitation
  304  program.
  305         2. An employee in a safety-sensitive position shall be
  306  placed by the employer in a non-safety-sensitive position, or if
  307  such position is unavailable, on leave status while
  308  participating in an employee assistance program or an alcohol
  309  and drug rehabilitation program. If placed on leave status
  310  without pay, the employee shall be permitted to use any
  311  accumulated leave credits prior to being placed on leave without
  312  pay.
  313         3. A special risk employee may be discharged or disciplined
  314  for the first positive confirmed drug test result when illicit
  315  drugs, pursuant to s. 893.13, are confirmed. No special risk
  316  employee shall be permitted to continue work in a safety
  317  sensitive position, but may be placed either in a non-safety
  318  sensitive position or on leave status while participating in an
  319  employee assistance program or an alcohol and drug
  320  rehabilitation program.
  321         (n)(o) Upon successful completion of an employee assistance
  322  program or an alcohol and drug rehabilitation program, the
  323  employee shall be reinstated to the same or equivalent position
  324  that was held prior to such rehabilitation.
  325         (o)(p)An No employer may not discharge, discipline, or
  326  discriminate against an employee, or refuse to hire a job
  327  applicant, on the basis of any prior medical history revealed to
  328  the employer pursuant to this section.
  329         (p)(q) An employer who performs drug testing or specimen
  330  collection shall use chain-of-custody procedures as established
  331  by the Agency for Health Care Administration to ensure proper
  332  recordkeeping, handling, labeling, and identification of all
  333  specimens to be tested.
  334         (q)(r) An employer shall pay the cost of all drug tests,
  335  initial and confirmation, which the employer requires of
  336  employees.
  337         (r)(s) An employee or job applicant shall pay the costs of
  338  any additional drug tests not required by the employer.
  339         (s)(t)An No employer may not shall discharge, discipline,
  340  or discriminate against an employee solely upon voluntarily
  341  seeking treatment, while under the employ of the employer, for a
  342  drug-related problem if the employee has not previously tested
  343  positive for drug use, entered an employee assistance program
  344  for drug-related problems, or entered an alcohol and drug
  345  rehabilitation program. However, special risk employees may be
  346  subject to discharge or disciplinary action when the presence of
  347  illicit drugs, pursuant to s. 893.13, is confirmed.
  348         (t)(u)If Where testing is conducted based on reasonable
  349  suspicion, each employer shall promptly detail in writing the
  350  circumstances which formed the basis of the determination that
  351  reasonable suspicion existed to warrant the testing. A copy of
  352  this documentation shall be given to the employee upon request
  353  and the original documentation shall be kept confidential and
  354  exempt from the provisions of s. 119.07(1) by the employer
  355  pursuant to subsection (11) and retained by the employer for at
  356  least 1 year.
  357         (u)(v) If an employee is unable to participate in
  358  outpatient rehabilitation, the employee may be placed on leave
  359  status while participating in an employee assistance program or
  360  an alcohol and drug rehabilitation program. If placed on leave
  361  without-pay status, the employee shall be permitted to use any
  362  accumulated leave credits prior to being placed on leave without
  363  pay. Upon successful completion of an employee assistance
  364  program or an alcohol and drug rehabilitation program, the
  365  employee shall be reinstated to the same or equivalent position
  366  that was held prior to such rehabilitation.
  367         (10) EMPLOYER PROTECTION.—
  368         (h) An employer may discharge or discipline shall refer an
  369  employee following with a first-time positive confirmed drug
  370  test result. If the employer does not discharge the employee,
  371  the employer may refer the employee to an employee assistance
  372  program or an alcohol and drug rehabilitation program in which
  373  the employee may participate at the expense of the employee or
  374  pursuant to a health insurance plan, unless such employee is
  375  discharged as provided in subparagraph (8)(n)3. If the results
  376  of a subsequent confirmed drug test are positive, the employer
  377  may discharge or discipline the employee.
  378         1. If an employer refers an employee to an employee
  379  assistance program or an alcohol and drug rehabilitation
  380  program, the employer must determine whether the employee is
  381  able to safely and effectively perform the job duties assigned
  382  to the employee while the employee participates in the employee
  383  assistance program or the alcohol and drug rehabilitation
  384  program.
  385         2. An employee whose assigned duties require the employee
  386  to carry a firearm, work closely with an employee who carries a
  387  firearm, perform life-threatening procedures, work with heavy or
  388  dangerous machinery, work as a safety inspector, work with
  389  children, work with detainees in the correctional system, work
  390  with confidential information or documents pertaining to
  391  criminal investigations, work with controlled substances, hold a
  392  position subject to s. 110.1127, or hold a position in which a
  393  momentary lapse in attention could result in injury or death to
  394  another person, is deemed unable to safely and effectively
  395  perform the job duties assigned to the employee while the
  396  employee participates in the employee assistance program or the
  397  alcohol and drug rehabilitation program.
  398         3. If an employer refers an employee to an employee
  399  assistance program or an alcohol and drug rehabilitation program
  400  and the employer determines that the employee is unable, or the
  401  employee is deemed unable, to safely and effectively perform the
  402  job duties assigned to the employee before he or she completes
  403  the employee assistance program or the alcohol and drug
  404  rehabilitation program, the employer shall place the employee in
  405  a job assignment that the employer determines the employee can
  406  safely and effectively perform while participating in the
  407  employee assistance program or the alcohol and drug
  408  rehabilitation program.
  409         4. If a job assignment in which the employee may safely and
  410  effectively perform is unavailable, the employer shall place the
  411  employee on leave status while the employee is participating in
  412  an employee assistance program or an alcohol and drug
  413  rehabilitation program. If placed on leave status without pay,
  414  the employee may use accumulated leave credits before being
  415  placed on leave without pay.
  416         (i) Nothing in This section does not shall be construed to
  417  prohibit an employer from conducting medical screening or other
  418  tests required by any statute, rule, or regulation for the
  419  purpose of monitoring exposure of employees to toxic or other
  420  unhealthy substances in the workplace or in the performance of
  421  job responsibilities. Such screening or tests shall be limited
  422  to the specific substances expressly identified in the
  423  applicable statute, rule, or regulation, unless prior written
  424  consent of the employee is obtained for other tests.
  425         (j) An employer shall place a safety-sensitive position
  426  employee whose drug test result is confirmed positive in a non
  427  safety-sensitive position, or if such a position is unavailable,
  428  on leave status while the employee participates in an employee
  429  assistance program or an alcohol and drug rehabilitation
  430  program. If placed on leave status without pay, the employee
  431  shall be permitted to use any accumulated leave credits prior to
  432  being placed on leave without pay.
  433         (k) A special risk employee may be discharged or
  434  disciplined on the first positive confirmed drug test result
  435  when illicit drugs, pursuant to s. 893.13, are confirmed. No
  436  special risk employee shall be permitted to continue work in a
  437  safety-sensitive position, but may be placed either in a non
  438  safety-sensitive position or on leave status while participating
  439  in an employee assistance program or an alcohol and drug
  440  rehabilitation program.
  441         Section 2. Paragraphs (j) and (o) of subsection (1),
  442  subsection (2), paragraph (g) of subsection (7), and subsection
  443  (11) of section 440.102, Florida Statutes, are amended to read:
  444         440.102 Drug-free workplace program requirements.—The
  445  following provisions apply to a drug-free workplace program
  446  implemented pursuant to law or to rules adopted by the Agency
  447  for Health Care Administration:
  448         (1) DEFINITIONS.—Except where the context otherwise
  449  requires, as used in this act:
  450         (j) “Job applicant” means a person who has applied for a
  451  position with an employer and has been offered employment
  452  conditioned upon successfully passing a drug test, and may have
  453  begun work pending the results of the drug test. For a public
  454  employer, “job applicant” means only a person who has applied
  455  for a special-risk or mandatory-testing safety-sensitive
  456  position.
  457         (o) “Mandatory-testing position” means, with respect to a
  458  public employer, a job assignment that requires the employee to
  459  carry a firearm, work closely with an employee who carries a
  460  firearm, perform life-threatening procedures, work with heavy or
  461  dangerous machinery, work as a safety inspector, work with
  462  children, work with detainees in the correctional system, work
  463  with confidential information or documents pertaining to
  464  criminal investigations, work with controlled substances, or a
  465  job assignment that requires an employee security background
  466  check, pursuant to s. 110.1127, or a job assignment in which a
  467  momentary lapse in attention could result in injury or death to
  468  another person. “Safety-sensitive position” means, with respect
  469  to a public employer, a position in which a drug impairment
  470  constitutes an immediate and direct threat to public health or
  471  safety, such as a position that requires the employee to carry a
  472  firearm, perform life-threatening procedures, work with
  473  confidential information or documents pertaining to criminal
  474  investigations, or work with controlled substances; a position
  475  subject to s. 110.1127; or a position in which a momentary lapse
  476  in attention could result in injury or death to another person.
  477         (2) DRUG TESTING.—An employer may test an employee or job
  478  applicant for any drug described in paragraph (1)(c). In order
  479  to qualify as having established a drug-free workplace program
  480  under this section and to qualify for the discounts provided
  481  under s. 627.0915 and deny medical and indemnity benefits under
  482  this chapter, an employer must, at a minimum, implement drug
  483  testing that conforms to the standards and procedures
  484  established in this section and all applicable rules adopted
  485  pursuant to this section as required in subsection (4). However,
  486  an employer does not have a legal duty under this section to
  487  request an employee or job applicant to undergo drug testing. If
  488  an employer fails to maintain a drug-free workplace program in
  489  accordance with the standards and procedures established in this
  490  section and in applicable rules, the employer is ineligible for
  491  discounts under s. 627.0915. However, an employer qualifies for
  492  discounts under s. 627.0915 if the employer maintains a drug
  493  free workplace program that is broader in scope than that
  494  provided for by the standards and procedures established in this
  495  section. An employer who qualifies All employers qualifying for
  496  and receives receiving discounts provided under s. 627.0915 must
  497  be reported annually by the insurer to the department.
  498         (7) EMPLOYER PROTECTION.—
  499         (g) This section does not prohibit an employer from
  500  conducting medical screening or other tests required, permitted,
  501  or not disallowed by any statute, rule, or regulation for the
  502  purpose of monitoring exposure of employees to toxic or other
  503  unhealthy substances in the workplace or in the performance of
  504  job responsibilities. Such screening or testing is limited to
  505  the specific substances expressly identified in the applicable
  506  statute, rule, or regulation, unless prior written consent of
  507  the employee is obtained for other tests. Such screening or
  508  testing need not be in compliance with the rules adopted by the
  509  Agency for Health Care Administration under this chapter or
  510  under s. 112.0455. A public employer may, through the use of an
  511  unbiased selection procedure, conduct random drug tests of
  512  employees occupying mandatory-testing safety-sensitive or
  513  special-risk positions if the testing is performed in accordance
  514  with drug-testing rules adopted by the Agency for Health Care
  515  Administration and the department. If applicable, random drug
  516  testing must be specified in a collective bargaining agreement
  517  as negotiated by the appropriate certified bargaining agent
  518  before such testing is implemented.
  519         (11) PUBLIC EMPLOYEES IN MANDATORY-TESTING SAFETY-SENSITIVE
  520  OR SPECIAL-RISK POSITIONS.—
  521         (a) If an employee who is employed by a public employer in
  522  a mandatory-testing safety-sensitive position enters an employee
  523  assistance program or drug rehabilitation program, the employer
  524  must assign the employee to a position other than a mandatory
  525  testing safety-sensitive position or, if such position is not
  526  available, place the employee on leave while the employee is
  527  participating in the program. However, the employee shall be
  528  permitted to use any accumulated annual leave credits before
  529  leave may be ordered without pay.
  530         (b) An employee who is employed by a public employer in a
  531  special-risk position may be discharged or disciplined by a
  532  public employer for the first positive confirmed test result if
  533  the drug confirmed is an illicit drug under s. 893.03. A
  534  special-risk employee who is participating in an employee
  535  assistance program or drug rehabilitation program may not be
  536  allowed to continue to work in any special-risk or mandatory
  537  testing safety-sensitive position of the public employer, but
  538  may be assigned to a position other than a mandatory-testing
  539  safety-sensitive position or placed on leave while the employee
  540  is participating in the program. However, the employee shall be
  541  permitted to use any accumulated annual leave credits before
  542  leave may be ordered without pay.
  543         Section 3. Section 944.474, Florida Statutes, is amended to
  544  read:
  545         944.474 Legislative intent; employee wellness program; drug
  546  and alcohol testing.—
  547         (1) It is the intent of the Legislature that the state
  548  correctional system provide a safe and secure environment for
  549  both inmates and staff. A healthy workforce is a productive
  550  workforce, and security of the state correctional system can
  551  best be provided by strong and healthy employees. The Department
  552  of Corrections may develop and implement an employee wellness
  553  program. The program may include, but is not limited to,
  554  wellness education, smoking cessation, nutritional education,
  555  and overall health-risk reduction, including the effects of
  556  using drugs and alcohol.
  557         (2) An employee Under no circumstances shall employees of
  558  the department may not test positive for illegal use of
  559  controlled substances. An employee of the department may not be
  560  under the influence of alcohol while on duty. In order to ensure
  561  that these prohibitions are adhered to by all employees of the
  562  department and notwithstanding s. 112.0455, the department may
  563  develop a program for the drug testing of all job applicants and
  564  for the random drug testing of all employees. The department may
  565  randomly evaluate employees for the contemporaneous use or
  566  influence of alcohol through the use of alcohol tests and
  567  observation methods. Notwithstanding s. 112.0455, the department
  568  may develop a program for the reasonable suspicion drug testing
  569  of employees who are in mandatory-testing positions, as defined
  570  in s. 440.102(1)(o), safety-sensitive or special risk positions,
  571  as defined in s. 112.0455(5), for the controlled substances
  572  listed in s. 893.03(3)(d). The reasonable suspicion drug testing
  573  authorized by this subsection shall be conducted in accordance
  574  with s. 112.0455, but may also include testing upon reasonable
  575  suspicion based on violent acts or violent behavior of an
  576  employee who is on or off duty. The department shall adopt rules
  577  pursuant to ss. 120.536(1) and 120.54 that are necessary to
  578  administer this subsection.
  579         Section 4. This act shall take effect July 1, 2012.